[2017] KEHC 2469 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW MISC. APPLICATION NO. 395 OF 2017

IN THE MATTER OF AN APPLICATION BY THE ASSOCIATION OF LAND SURVEYORS OF KENYA FOR LEAVE TO APPLY FOR JUDICIAL REVIEW AND AN ORDER OF CERTIORARI AND AN ORDER OF PROHIBITION

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010, THE LAW REFORM ACT, CHAPTER 26, AND THE SURVEY ACT CAP 299 OF THE LAW OF KENYA

AND

BETWEEN

REPUBLIC……………….………..………….…..…...……………APPLICANT

VERSUS

THE SURVEYORS BOARD OF KENYA.......................................RESPONDENT

EX-PARTE:

WILSON NDIRANGU KAMAU AND BIBIANA ACHIENG RABUKU OMALA (SUING ON BEHALF OF ASSOCIATION OF LAND SURVEYORS OF KENYA)

JUDGEMENT

Introduction

1. In their Motion brought on Notice dated 6th July, 2017, the ex parte applicants herein, Wilson Ndirangu Kamau and Bibiana Achieng Rabuku Omala, substantially seek an order of certiorari to remove into this Court and quash the decision made by the Chairman of the Respondent, the Surveyors Board of Kenya (hereinafter referred to as “the Board”) that took effect on 1st January, 2017 to increase the annual subscription fees for surveyors. They also seek an order of prohibition directed at the Chairman of the Respondent preventing the Chairman from implementing the decision which took effect on 1st January, 2017. The also seek an order for provision for costs.

Ex Parte Applicant’s Case

2. According to the ex parte applicants, who have commenced these proceedings in on behalf of Association of Land Surveyors of Kenya (hereinafter referred to as “the Association”), the Association is duly registered under the Societies Act, Cap 108 Laws of Kenya.

3. According to the applicants, the Respondent is a statutory body operationalised by the Survey Act, Cap 299 Laws of Kenya (hereinafter referred to as “the Act”) whose main duties include the granting of licences in accordance with the provisions of the Act and keeping a register of all licensed surveyors.

4. According to the applicants, they received a circular dated 21st December, 2016 addressed to all licensed surveyors stating that there shall be an increment of fees for financing of land surveyors board activities. Subsequently, the Association’s members convened a meeting whereby it was resolved that the decision be challenged and they immediately initiated negotiations with the Board with a view of having the matter amicably settled. However the Association’s correspondences were never replied to by the Board and its request for a meeting was similarly ignored.

5. According to the applicants there was no participation by the members of the Association prior to making of this decision as is required under the Constitution of Kenya, 2010 and accordingly the decision was a unilateral decision by the members of the Board.

6. The ex parte applicants averred that the law that establishes the Board does not give them the powers to levy fees on its members as they have done through the decision made vide the said circular. It was averred that the Act gives the Board the powers to renew licences for surveyors in Kenya and to maintain an updated list of surveyors. To the applicants, unless one is licensed to carry out survey, he is denied opportunities of working or applying for tenders or even any work that they may undertake can be challenged and or revoked.

7. It was therefore contended that the Board had placed the licensed surveyors of Kenya in a precarious position of either condoning an illegality or risk being denied a licence and a source of livelihood. The applicants averred that the decision of the Chairman of the land survey to increase subscription fees was bad in law, ultra vires, laden with malice and should not be allowed to stand.

8. This Court, it was contended has supervisory powers to quash the decision of the survey board vide their circular dated 21st December, 2016 of increasing fees for surveyors.

9. In their submissions the applicants contended that though the Respondent being the custodian of surveyors in Kenya, possesses the power to make regulations enhancing the survey profession, it however abused this power by arbitrarily increasing the annual fees being paid without consulting or allowing the participation of licensed surveyors in Kenya in contravention of the principles of governance I the Constitution.

10. It was submitted that the right to fair administrative action is enshrined in Article 47 of the Constitution as read with section 5(1)(a)-(c) of the Fair Administrative Action Act which provision resonates perfectly with Article 10(2) of the Constitution. In support of their submissions the applicants relied on Republic vs. Nairobi City County ex parte Pius Omollo & 6 Others [2015] eKLR, Doctors for Life International vs. Speaker of the National Assembly and Others (CCT 12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC).

11. It was submitted that for the Respondent to fail to consult the licensed surveyors before undertaking to effect their decision to increase the annual fees amounted not only to an unprocedural gesture of the law, but also a contravention of the values and principles of governance provide din the Constitution and in this respect the applicants relied on the decision of Majanja, J in Dry Associates Ltd vs. Capital Markets Authority and Another – Petition No. 328 of 2011that:

“Article 47 is intended to subject administrative processes to constitutional discipline hence relief for administrative grievances is nolonger left to the realm of common law…but is to be measured against the standards established by the Constitution.”

12. As to whether the orders in the nature of judicial review reliefs ought to be granted the applicants relied on Kenya National Examinations Council vs. Republic ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No. 266 of 1996 and R vs. Electricity Commissioners ex parte Electricity Joint Committee [1924] 1 KB 171 at 559.

Determinations

13. I have considered the application, the affidavits, the submissions and authorities cited herein.

14. The parameters of judicial review were set out by the Court of Appeal in Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996 as follows:

“Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision...Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done...Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.”

15. The duties of the Respondent Board are set out in section 9 of the Survey Act which provides as hereunder:

The duties of the Board shall be—

(a) to conduct the examination of candidates for admission as licensed surveyors in accordance with the provisions of this Act;

(b) to grant licences in accordance with the provisions of this Act;

(c) to keep a register of all licensed surveyors;

(d) to take disciplinary proceedings against licensed surveyors in accordance with the provisions of this Act;

(e) to hear and determine any dispute between any licensed surveyor and his client as to the fees charged by the licensed surveyor;

(f) to hear and determine any dispute between the Director and a licensed surveyor as to the application of any regulations in which provision is made for reference to the Board;

(g) to advise the Director on all matters relating to cadastral surveys in connexion with the registration of land or of title to land under any written law for the time being in force relating to the registration of land or of title to land.

16. It is therefore clear that one of the powers given to the Respondent is the power to grant licences in accordance with the provisions of theSurvey Act. Section 10 of the said Act on the other hand provides as hereunder:

No person shall be licensed under this Act unless he is qualified as hereinafter provided; and every person who is so qualified shall be entitled, on payment of the prescribed fee, to be granted a licence by the Board in the prescribed form.

17. Who then is the person empowered to prescribe the fees alluded to in section 10? Section 45(1) of the said Act empowers the Minister, subject to the provisions of subsection (2) thereof, to make regulations prescribing the procedure for granting licences under the Act. Subsection (2) provides that certain powers can only be exercised by the Minister in consultation with the Board. It is clear from my reading of the Act and the Schedules thereto that there is no express provision thereunder that bestows on a particular person the power to prescribe fees or increase the same. However, section 48 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya provides as hereunder:

Where a written law confers power upon a person to do or to enforce the doing of an act or thing, all powers shall be deemed to be also conferred as are necessary to enable the person to do or to enforce the doing of the act or thing.

18. In my view since the Minister is empowered to make regulations relating to licensing of surveyors who can only be licensed upon payment of the prescribed fees, it must necessarily follow that the Minister must similarly have the powers to prescribe the said fees. There however is no provision empowering the Respondent Board to prescribe the same leave alone to increase them.

19. It is trite that a judicial or quasi-judicial tribunal, such as the Respondent Board herein has no inherent powers. In Choitram vs. Mystery Model Hair Salon [1972] EA 525, Madan, J (as he then was) was of the view that powers must be expressly conferred; they cannot be a matter of implication. Similarly, in Gullamhussein Sunderji Virji vs. Punja Lila and Another HCMCA No. 9 of 1959 [1959] EA 734, it was held that Rent Restriction Board is the creation of statute and neither the Board nor its chairman has any inherent powers but only those expressly conferred on them

20. It was in appreciation of the foregoing position that the Court in Ex Parte Mayfair Bakeries Limited vs. Rent Restriction Tribunal and Kirit R (Kirti) Raval Nairobi HCMCC No. 246 of 1981held that in testing whether a statute has conferred jurisdiction on an inferior court or a tribunal the wording must be strictly construed: it must in fact be an express conferment and not a matter of implication since a Tribunal being a creature of statute has only such jurisdiction as has been specifically conferred upon it by the statute. Therefore where the language of an Act is clear and explicit the court must give effect to it whatever may be the consequences for in that case the words of the statute speak the intention of the legislature. Further, each statute has to be interpreted on the basis of its own language for words derive their colour and content from their context and secondly, the object of the legislation is a paramount consideration. See Chogley vs. The East African Bakery [1953] 26 KLR 31 at 33 and 34; Re: Hebtulla Properties Ltd. [1979] KLR 96;[1976-80] 1 KLR 1195; Choitram vs. Mystery Model Hair Salon (supra); Warburton vs. Loveland [1831] 2 DOW & CL. (HL) at 489; Lall vs. Jeypee Investments Ltd [1972] EA 512 at 516; Attorney General vs. Prince Augustus of Hanover [1957] AC 436 AT 461.

21. It is therefore clear that a Statutory Board’s power must be conferred by the Statute establishing it which statute must necessarily set out its powers expressly since such Boards have no inherent powers. Unless its powers are expressly donated by the parent statute, it cannot purport to exercise any powers not conferred on it expressly. As has been held time without a number, where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority. If it does so it acts without or in excess of its jurisdiction. Its actions are therefore termed as being ultra vires.

22. In Republic vs. Kenya Revenue Authority Ex Parte Aberdare Freight Services Ltd & 2 Others [2004] 2 KLR 530it was held that the general principle remains however, that a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others.

23. Therefore where the law exhaustively provides for the jurisdiction of an executive body or authority, the body or authority must operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation. The courts would be no rubber stamp of the decisions of administrative bodies. Whereas, if Parliament gives great powers to them, the courts must allow them to it, then the Courts must nevertheless be vigilant to see that the said bodies exercise those powers in accordance with the law. The administrative bodies and tribunals or boards must act within their lawful authority and an act, whether it be of a judicial, quasi-judicial or administrative nature, is subject to the review of the courts on certain grounds. The tribunals or boards must act in good faith; extraneous considerations ought not to influence their actions; and they must not misdirect themselves in fact or law. Most importantly they must operate within the law and exercise only those powers which are donated to them by the law or the legal instrument creating them. See Re Hardial Singh and Others [1979] KLR 18; [1976-80] 1 KLR 1090.

24. It is therefore my view that in the absence of express provisions empowering the Respondent Board to increase the prescribed fees, it had no power to purport to do so. By so acting its actions were ultra vires.

25. Having so found the issue of the applicants having not been consulted does not arise.

26. The broad grounds on which the Court exercises its judicial review jurisdiction were restated in the Uganda case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300. In that case the Court cited with approval Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 andAn Application by Bukoba Gymkhana Club [1963] EA 478 at479and held:

“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

27. It follows that the Notice of Motion dated 6th July, 2017 is merited.

Order

28. Consequently the orders which commend themselves to me and which I hereby grant are as follows:

1) An order of certiorari removing into this Court for purposes of the being quashed and quashingthe decision made by the Chairman of the Respondent Board that took effect on 1st January, 2017 to increase the annual subscription fees for surveyors.

2) An order of prohibition directed at the Chairman of the Respondent Boardprohibitingthe said Chairmanfrom implementing the decision that took effect on 1st January, 2017.

3) The applicants will have half the costs of these proceedings to be borne by the Respondent.

29. Orders accordingly

Dated at Nairobi this 1st day of November, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Majani for Mr Wambilyanga for the Applicant

Mr Nderitu for the Respondent

CA Ooko